I believe that plaintiffs should prevail in this litigation.
My conclusion differs in part from my original memorandum filed in conjunction with the request for a Temporary Restraining Order. As part of the expedited review (per Section 561 of the CDA), and in contrast to the limited documentation available to me at the time of the T.R.O. hearing, we have now gathered voluminous evidence presented by way of sworn declarations, live testimony, demonstrative evidence, and other exhibits.(1) Based upon our findings of fact derived from careful consideration of that evidence, I now conclude that this statute is overbroad and does not meet the strict scrutiny standard in Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989).
More specifically, I now find that current technology is inadequate to provide a safe harbor to most speakers on the Internet. On this issue, I concur in Chief Judge Sloviter's opinion. In addition, I continue to believe that the word "indecent" is unconstitutionally vague, and I find that the terms "in context" and "patently offensive" also are so vague as to violate the First and Fifth Amendments.
It is, of course, correct that statutes that attempt to regulate the content of speech presumptively violate the First Amendment. See e.g. R.A.V. v. City of Saint Paul, 505 U.S. 377, 381 (1992). That is as it should be. The prohibition against Government's regulation of speech cannot be set forth any clearer than in the language of the First Amendment itself. I suspect, however, that it may come as a surprise to many people who have not followed the evolution of constitutional law that, by implication at least, the First Amendment provides that Congress shall make no law abridging the freedom of speech unless that law advances a compelling governmental interest.(2) Our cherished freedom of speech does not cover as broad a spectrum as one may have gleaned from a simple reading of the Amendment.(3)
First Amendment jurisprudence has developed into a study of intertwining standards and applications, perhaps as a necessary response to our ever-evolving culture and modes of communication.(4)
Essentially, my concerns are these: above all, I believe that the challenged provisions are so vague as to violate both the First and Fifth Amendments, and in particular that Congress' reliance on Pacifica is misplaced. In addition, I believe that technology as it currently exists -- and it bears repeating that we are at the preliminary injunction phase only -- cannot provide a safe harbor for most speakers on the Internet, thus rendering the statute unconstitutional under a strict scrutiny analysis. I refer to Chief Judge Sloviter's more detailed analysis of this issue.
While I believe that our findings of fact clearly show that as yet no defense is technologically feasible, and while I also have found the present Act to be unconstitutionally vague, I believe it is too early in the development of this new medium to conclude that other attempts to regulate protected speech within the medium will fail a challenge. That is to say that I specifically do not find that any and all statutory regulation of protected speech on the Internet could not survive constitutional scrutiny. Prior cases have established that government regulation to prevent access by minors to speech protected for adults, even in media considered the vanguard of our First Amendment protections, like print, may withstand a constitutional challenge. See e.g. Ginsberg v. New York, 390 U.S. 629, 635 (1968) ("`Material which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children.'") (quoting Bookcase Inc. v. Broderick, 18 N.Y.2d 71, 75, 271 N.Y.S.2d 947, 952, 218 N.E.2d 668, 671 (1966), appeal dismissed, sub nom Bookcase, Inc. v. Leary, 385 U.S. 12 (1966)). It should be noted that those restrictions that have been found constitutional were sensitive to the unique qualities of the medium at which the restriction was aimed.
B.
This statute, all parties agree, deals with protected speech, the preservation of which has been extolled by court after court in case after case as the keystone, the bulwark, the very heart of our democracy. What is more, the CDA attempts to regulate protected speech through criminal sanctions, thus implicating not only the First but also the Fifth Amendment of our Constitution. The concept of due process is every bit as important to our form of government as is free speech. If free speech is at the heart of our democracy, then surely due process is the very lifeblood of our body politic; for without it, democracy could not survive. Distilled to its essence, due process is, of course, nothing more and nothing less than fair play. If our citizens cannot rely on fair play in their relationship with their government, the stature of our government as a shining example of democracy would be greatly diminished. I believe that an exacting or strict scrutiny of a statute which attempts to criminalize protected speech requires a word by word look at that statute to be sure that it clearly sets forth as precisely as possible what constitutes a violation of the statute.
The reason for such an examination is obvious. If the Government is going to intrude upon the sacred ground of the First Amendment and tell its citizens that their exercise of protected speech could land them in jail, the law imposing such a penalty must clearly define the prohibited speech not only for the potential offender but also for the potential enforcer. Kolender, 461 U.S. 352; Hoffman Estates, 455 U.S. 489; Smith v. Goguen, 415 U.S. 566 (1974); Grayned v. City of Rockford, 408 U.S. 104 (1972); Winters v. New York, 333 U.S. 507 (1948).
In dealing with issues of vagueness and due process over the years, the Supreme Court has enunciated many notable principles. One concern with vague laws relates to the issue of notice. The older cases have used phrases such as "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law," Connally v. General Const. Co., 269 U.S. 385, 391 (1926) (citations omitted); "it will not do to hold an average man to the peril of indictment for the unwise exercise of his . . . knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result," Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927); and "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids," Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Second, the Court has said that laws must provide precise standards for those who apply them to prevent arbitrary and discriminatory enforcement, because "[w]hen the legislature fails to provide such minimal guidelines, a criminal statute may permit `a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'" Kolender, 461 U.S. at 358 (citing Goguen, 415 U.S. at 575). Finally, when First Amendment concerns have been implicated, a stricter standard of examination for vagueness is imperative. "[T]his court has intimated that stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser." Smith v. California, 361 U.S. 147, 151 (1959). See also Hoffman Estates, 455 U.S. at 499 ("[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech..., a more stringent vagueness test should apply.") (citations omitted).
A case which sums up vagueness as it relates to due process as succinctly as any other is Grayned v. City of Rockford. Here the court said:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked."
Grayned, 408 U.S. at 108-109 (citations omitted).
At the same time, in considering the vagueness issue, as the Government correctly points out, "[C]ondemned to the use of words, we can never expect mathematical certainty from our language." Grayned, 408 U.S. at 110. See also Hoffman Estates, 455 U.S. 489; Hynes v. Mayor & Council of Oradell, 425 U.S. 610 (1976); Goguen, 415 U.S. 566. In addition, it will always be true that the fertile legal "imagination can conjure hypothetical cases in which the meaning of [disputed] terms will be in nice question." American Communications Assn. v. Douds, 339 U.S. 382, 412 (1950). Thus, as I considered the vagueness issue I have kept in mind the observation of Justice Holmes, denying a challenge to vagueness in Nash v. United States, 229 U.S. 373 (1913). To Justice Holmes, "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment . . ., he may incur the penalty of death." Nash, 229 U.S. at 377. Even more recently the court has stated that "due process does not require `impossible standards' of clarity." Kolender, 461 U.S. at 361, (quoting United States v. Petrillo, 332 U.S. 1, 7-8 (1947)). It is with all of these principles in mind, as they interplay with the unique features of the Internet, that I have reached my conclusion.
The fundamental constitutional principle that concerns me is one of simple fairness, and that is absent in the CDA. The Government initially argues that "indecent" in this statute is the same as "patently offensive." I do not agree that a facial reading of this statute supports that conclusion. The CDA does not define the term "indecent," and the FCC has not promulgated regulations defining indecency in the medium of cyberspace. If "indecent" and "patently offensive" were intended to have the same meaning, surely section (a) could have mirrored section (d)'s language.(5) Indecent in this statute is an undefined word which, standing alone, offers no guidelines whatsoever as to its parameters. Interestingly, another federal crime gives a definition to indecent entirely different from that proposed in the present case.(6) While not applicable here, this example shows the indeterminate nature of the word and the need for clear definition, particularly in a statute which infringes upon protected speech. Although the use of different terms in Section 223(a) and (d) suggests that Congress intended that the terms have different meanings, the Conference Report indicates an intention to treat Section 223(a) as containing the same language as Section 223(d). Conf. Rep. at 188-89 ("The conferees intend that the term indecency... has the same meaning as established in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and [Sable] and "New section 223(d)(1) codifies the definition of indecency from [Pacifica] . . . . The precise contours of the definition of indecency have varied . . . . The essence of the phrase -- patently offensive descriptions of sexual and excretory activities -- has remained constant, however."). Therefore, I will acknowledge that the term indecency is "reasonably susceptible" to the definition offered in the Conference Report and might therefore adopt such a narrowing construction if it would thereby preserve the constitutionality of the statute. See Virginia v. American Booksellers Association, 484 U.S. 383, 397 (1988); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). Accepting these terms as synonymous, however, provides no greater help to a speaker attempting to comply with the CDA. Contrary to the Government's suggestion, Pacifica does not answer the question of whether the terms pass constitutional muster in the present case. In Pacifica, the Court did not consider a vagueness challenge to the term "indecent," but considered only whether the Government had the authority to regulate the particular broadcast at issue -- George Carlin's Monologue entitled "Filthy Words." In finding in the affirmative, the Court emphasized that its narrow holding applied only to broadcasting, which is "uniquely accessible to children, even those too young to read." 438 U.S. at 749. Thus, while the Court sanctioned the FCC's time restrictions on a radio program that repeatedly used vulgar language, the Supreme Court did not hold that use of the term "indecent" in a statute applied to other media, particularly a criminal statute, would be on safe constitutional ground.
The Supreme Court more recently had occasion to consider a statute banning "indecent" material in the dial-a-porn context in Sable, 492 U.S. 115, and found that a complete ban on such programming violated the First Amendment because it was not narrowly tailored to serve the purpose of limiting children's access to commercial pornographic telephone messages. Once again, the Court did not consider a challenge to the term "indecent" on vagueness grounds, and indeed has never directly ruled on this issue.
Several other courts have, however, upheld the use of the term in statutes regulating different media. For example, in Information Providers' Coalition v. FCC, 928 F.2d 866 (9th Cir. 1991), the Ninth Circuit Court of Appeals considered whether the term "indecent" in the 1989 Amendment to the Communications Act regulating access to telephone dial-a-porn services and the FCC's implementing regulations was void for vagueness. The FCC had defined "indecent" as "the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium." 928 F.2d at 874. Although recognizing that the Supreme Court had never explicitly ruled on a vagueness challenge to the term, the court read Sable and Pacifica as having implicitly accepted the use of this definition of "indecent." The court further stated that the FCC's definition of "indecent" was no less imprecise than was the definition of "obscenity" as announced in Miller v. California, 413 U.S. 15, 25 (1973), and thus concluded that "indecent" as pertained to dial-a-porn regulations must survive a vagueness challenge. See also Dial Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), (upholding the use of "indecent" in the same amendment to the Communications Act and FCC regulations.); Action for Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C.Cir. 1991) (rejecting vagueness challenge to "indecency" provision in broadcast television regulations).(7)
Notably, however, in these telephone and cable television cases the FCC had defined indecent as patently offensive by reference to contemporary community standards for that particular medium. See, e.g., Pacifica, 438 U.S. at 732 (defining "indecent" by reference to terms "patently offensive as measured by contemporary community standards for the broadcast medium"); Dial Information Services, 938 F.2d at 1540 (defining indecency by reference to contemporary community standards for the telephone medium). Here, the provision is not so limited. In fact, there is no effort to conform the restricting terms to the medium of cyberspace, as is required under Pacifica and its progeny.
The Government attempts to save the "indecency" and "patently offensive" provisions by claiming that the provisions would only be used to prosecute pornographic works which, when considered "in context" as the statute requires, would be considered "indecent" or "patently offensive" in any community. The Government thus contends that plaintiffs' fears of prosecution for publishing material about matters of health, art, literature or civil liberties are exaggerated and unjustified. The Government's argument raises two issues: first is the question of which "community standards" apply in cyberspace, under the CDA; and second is the proposition that citizens should simply rely upon prosecutors to apply the statute constitutionally.
Are the contemporary community standards to be applied those of the vast world of cyberspace, in accordance with the Act's apparent intent to establish a uniform national standard of content regulation? The Government offered no evidence of any such national standard or nationwide consensus as to what would be considered "patently offensive". On the contrary, in supporting the use of the term "indecent" in the CDA, the Government suggests that, in part, this term was chosen as a means of insulating children from material not restricted under current obscenity laws. This additional term is necessary, the Government states, because "whether something rises to the level of obscene is a legal conclusion that, by definition, may vary from community to community." Govt. Brief at 31. In support of its argument, the Government points to the Second Circuit's decision in United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 134, 137 (2d Cir. 1983), which upheld the district court's conclusion that "detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation" including the film "Deep Throat" and other pornographic films and magazines, are not obscene in light of the community standards prevailing in New York City." What this argument indicates is that as interpretations of obscenity ebb and flow throughout various communities, restrictions on indecent material are meant to cover a greater or lesser quantity of material not reached by each community's obscenity standard. It follows that to do this, what constitutes indecency must be as open to fluctuation as the obscenity standard and cannot be rigidly constructed as a single national standard if it is meant to function as the Government has suggested. As Justice Scalia stated, "[t]he more narrow the understanding of what is `obscene,' . . . the more pornographic what is embraced within the residual category of `indecency.'" Sable, 492 U.S. at 132 (Scalia, J. concurring). This understanding is consistent with the case law, in which the Supreme Court has explained that the relevant community is the one where the information is accessed and where the local jury sits. See Sable, 492 U.S. at 125; Hamling v. United States, 418 U.S. 87 (1974); Miller, 413 U.S. at 30 ("[O]ur nation is simply too big and too diverse for this Court to reasonably expect that such standards [of what is patently offensive] could be articulated for all 50 states in a single formulation."). However, the Conference Report with regard to the CDA states that the Act is "intended to establish a uniform national standard of content regulation." Conf. Rep. at 191. This conflict inevitably leaves the reader of the CDA unable to discern the relevant "community standard," and will undoubtedly cause Internet users to "steer far wider of the unlawful zone" than if the community standard to be applied were clearly defined. The chilling effect on the Internet users' exercise of free speech is obvious. See Baggett v. Bullitt, 377 U.S. 360, 372 (1964). This is precisely the vice of vagueness.
In addition, the Government's argument that the challenged provisions will be applied only to "pornographic" materials, and will not be applied to works with serious value is without support in the CDA itself. Unlike in the obscenity context, indecency has not been defined to exclude works of serious literary, artistic, political or scientific value, and therefore the Government's suggestion that it will not be used to prosecute publishers of such material is without foundation in the law itself. The Government's claim that the work must be considered patently offensive "in context" does nothing to clarify the provision, for it fails to explain which context is relevant. "Context" may refer to, among other things, the nature of the communication as a whole, the time of day it was conveyed, the medium used, the identity of the speaker, or whether or not it is accompanied by appropriate warnings. See e.g., Pacifica, 438 U.S. at 741 n.16, n.17 (referring to "the context of the whole book," and to the unique interpretation of the First Amendment "in the broadcasting context").
The thrust of the Government's argument is that the court should trust prosecutors to prosecute only a small segment of those speakers subject to the CDA's restrictions, and whose works would reasonably be considered "patently offensive" in every community. Such unfettered discretion to prosecutors, however, is precisely what due process does not allow. "It will not do to say that a prosecutor's sense of fairness and the Constitution would prevent a successful . . . prosecution for some of the activities seemingly embraced within the sweeping statutory definitions. The hazard of being prosecuted... nevertheless remains . . . . Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law." Baggett, 377 U.S. at 373-74; see also Keyishian v. Board of Regents, 385 U.S. 589, 599 (1967)("[i]t is no answer" to a vague law for the Government "to say that the statute would not be applied in such a case."). And we cannot overlook the vagaries of politics. What may be, figuratively speaking, one administration's pen may be another's sword.
The evidence and arguments presented by the Government illustrate the possibility of arbitrary enforcement of the Act. For example, one Government expert opined that any of the so-called "seven dirty words" used in the Carlin monologue would be subject to the CDA and therefore should be "tagged," as should paintings of nudes displayed on a museum's web site. The Government has suggested in its brief, however, that the Act should not be so applied. See Govt. Brief at 37 (suggesting that "seven dirty words" if used "in the context of serious discussions" would not be subject to the Act). Even Government counsel was unable to define "indecency" with specificity. The Justice Department attorney could not respond to numerous questions from the court regarding whether, for example, artistic photographs of a nude man with an erect penis, depictions of Indian statues portraying different methods of copulation, or the transcript of a scene from a contemporary play about AIDS could be considered "indecent" under the Act.
Plaintiffs also argue that section 223(e)(5)(A) of the CDA, offering a defense for speakers who take "good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to a communication" covered by the Act, is unconstitutionally vague because it fails to specify what would constitute an effective defense to prosecution. The plain language of the safe harbor provision indicates an effort to ensure that the statute limits speech in the least restrictive means possible by taking into account emerging technologies in allowing for any and all "reasonable, effective and appropriate" approaches to restricting minors' access to the proscribed material. But, the statute itself does not contain any description of what, other than credit card verification and adult identification codes -- which we have established remain unavailable to most content providers -- will protect a speaker from prosecution. Significantly, although the FCC is authorized to specify measures that might satisfy this defense, the FCC's views will not be definitive but will only "be admitted as evidence of good faith efforts" that the defendant has met the requirements of the defense. 47 U.S.C. Section 223(e)(6). Thus, individuals attempting to comply with the statute presently have no clear indication of what actions will ensure that they will be insulated from criminal sanctions under the CDA.
C.
The consequences of posting indecent content are severe.(8) I recognize that people must make judgments each and every day, many times in the most intimate of relationships and that an error in judgment can have serious consequences. It is also true that where those consequences involve penal sanctions, a criminal law or statute has more often than not carefully defined the proscribed conduct. It is not so much that the accused needs these precise definitions, as it has been said he or she rarely reads the law in advance. What is more important is that the enforcer of statutes must be guided by clear and precise standards. In statutes that break into relatively new areas, such as this one, the need for definition of terms is greater, because even commonly understood terms may have different connotations or parameters in this new context.(9) Words cannot define conduct with mathematical certainty, and lawyers, like the bright and intelligent ones now before us, will most certainly continue to devise ways by which to challenge them. This rationale, however, can neither support a finding of constitutionality nor relieve legislators from the very difficult task of carefully drafting legislation tailored to its goal and sensitive to the unique characteristics of, in this instance, cyberspace.
ENDNOTES
(1)If by virtue of the statute's authorization of expedited review of its constitutionality, "on its face," 47 U.S.C. Section561(a), we were strictly limited to looking at the words of the statute, I would stand by my T.R.O. opinion. However, in light of the procedures which are required by 47 U.S.C. Section 561(a) and 28 U.S.C. Section 2284, and were followed by this court in establishing an extensive record in this case, to ignore the evidence presented would be to ignore what an action for injunctive relief is all about.
Section 561 reads as follows:
Section 561. EXPEDITED REVIEW.
(a) THREE-JUDGE DISTRICT COURT HEARING -- Notwithstanding any other provision of law, any civil action challenging the constitutionality, on its face, of this title or any amendment made by this title, or any provision thereof, shall be heard by a district court of 3 judges convened pursuant to the provisions of section 2284 of title 28, United States Code. Section 2284 states, in relevant part:
Section 2284. Three-judge court; when required; composition; procedure
(b) In any action required to be heard and determined by a district court of three judges under subsection (a) of this section, the composition and procedure of the court shall be as follows: . . .
(3) A single judge may conduct all proceedings except the trial . . . . He may grant a temporary restraining order on a specific finding, based on evidence submitted, that specified irreparable damages will result if the order is not granted, which order, unless previously revoked by the district judge, shall remain in force only until the hearing and determination by the district court of three judges of an application for a preliminary injunction....
(2)Justice Kennedy argues in his opinion in Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105, 120 (1991), that "[t]he regulated content has the full protection of the First Amendment and this, I submit, is itself a full and sufficient reason for holding the statute unconstitutional. In my view it is both unnecessary and incorrect to ask whether the state can show that the statute 'is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.'" In the present case, there is no disagreement that indecent and patently offensive speech have the full protection of the First Amendment.
(3)Not only has speech been divided up and given values -- with some types of speech given little or no protection (obscenity, fighting words, possibly commercial speech) -- but also, by court decisions over the years, it has been decided that the content of speech can indeed be regulated provided that the regulation will directly and materially advance a compelling government interest, and that it is narrowly tailored to accomplish that interest in the least restrictive manner. However, any content-based restriction must survive this most exacting scrutiny. Sable, 492 U.S. 115; Texas v. Johnson, 491 U.S. 397 (1989).
(4)The plaintiffs have made facial challenges to the disputed provisions of the CDA on grounds of both vagueness and overbreadth. The approach taken and language used in evaluating a statute under each of these doctrines commingles, and frequently is treated as a single approach. "We have traditionally viewed vagueness and overbreadth as logically related and similar doctrines." Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983) (citing Keyishian v. Board of Regents, 385 U.S. 589, 609, (1967); NAACP v. Button, 371 U.S. 415, 433 (1963)). Even in cases where the court attempts to distinguish these two doctrines, it acknowledges some interplay between them. See e.g. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, and n. 6 (1982).
In addition, when discussing overbreadth, one cannot avoid reference to the same language used to describe and apply the strict scrutiny standard to constitutionally protected activities. See e.g. Sable, 492 U.S. at 131; Roberts v. Jaycees, 468 U.S. 609, 623 (1984). While there are occasional attempts to argue for clear distinctions among these doctrines, see e.g. Kolender, 461 U.S. at 369 (White, J., Rehnquist, J. dissenting), such bright lines simply have not been, and most likely cannot be, drawn in this area.
(5)Comparing a different portion of each of these two provisions suggests that different terms are not to be read to mean the same thing. As written, section (a) pertains to telecommunications devices, and section (d) to interactive computer services. While we have not entirely resolved the tension between these definitions at this stage, it has been established that these terms are not synonymous, but are in fact intended to denote different technologies. This, together with the rule of statutory construction set forth in Chief Judge Sloviter's opinion, seems to suggest on the face of the statute that indecent and patently offensive also are not to be read as synonymous.
(6)18 U.S.C. Section1461 states, "The term `indecent' as used in this section includes matter of a character tending to incite arson, murder or assassination."
(7)Although the Supreme Court may rule on the vagueness question in the context of cable television regulation in Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995), currently pending on certiorari before the Court, we will not defer adjudication of this issue as the constitutionality of the term in the cable context may not be determinative of its use in cyberspace.
(8)Each intentional act of posting indecent content for display shall be considered a separate violation of this subsection and carries with it a fine, a prison term of up to two years, or both. 47 U.S.C. Section 223(a),(d) and Conf. Rep. at 189.
(9)As I have noted, the unique nature of the medium cannot be overemphasized in discussing and determining the vagueness issue. This is not to suggest that new technology should drive constitutional law. To the contrary, I remain of the belief that our fundamental constitutional principles can accommodate any technological achievements, even those which, presently seem to many to be in the nature of a miracle such as the Internet.
CONCURRING OPINION
DALZELL, District Judge
A. Introduction
I begin with first principles: As a general rule, the Constitution forbids the Government from silencing speakers because of their particular message. R.A.V. v. City of Saint Paul, 112 S. Ct. 2538, 2542 (1992). "Our political system and cultural life rest upon this ideal." Turner Broadcasting Sys. v. FCC, 114 S. Ct. 2445, 2458 (1994). This general rule is subject only to "narrow and well-understood exceptions". Id. A law that, as here, regulates speech on the basis of its content, is "presumptively invalid". R.A.V., 112 S. Ct. at 2542.
Two of the exceptions to this general rule deal with obscenity (commonly understood to include so-called hardcore pornography), Miller v. California, 413 U.S. 15 (1973), and child pornography, New York v. Ferber, 458 U.S. 747 (1982). The Government can and does punish with criminal sanction people who engage in these forms of speech. 18 U.S.C. Sections 1464-65 (criminalizing obscene material); id. Sections 2251-52 (criminalizing child pornography). Indeed, the Government could punish these forms of speech on the Internet even without the CDA. E.g., United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995) (affirming obscenity convictions for the operation of a computer bulletin board).
The Government could also completely ban obscenity and child pornography from the Internet. No Internet speaker has a right to engage in these forms of speech, and no Internet listener has a right to receive them. Child pornography and obscenity have "no constitutional protection, and the government may ban [them] outright in certain media, or in all." Alliance for Community Media v. FCC, 56 F.3d 105, 112 (D.C. Cir. 1995) (citing R.A.V., 112 S. Ct. at 2545), cert. granted sub nom. Denver Area Educ. Telecommunications Consortium, 116 S. Ct. 471 (1996); see also Ferber, 458 U.S. at 756. As R.A.V. notes, "'the freedom of speech' referred to by the First Amendment does not include a freedom to disregard these traditional limitations." R.A.V., 112 S. Ct. at 2543.
The cases before us, however, are not about obscenity or child pornography. Plaintiffs in these actions claim no right to engage in these forms of speech in the future, nor does the Government intimate that plaintiffs have engaged in these forms of speech in the past.
This case is about "indecency", as that word has come to be understood since the Supreme Court's decisions in FCC v. Pacifica Foundation, 438 U.S. 726 (1976), and Sable Communications v. FCC, 492 U.S. 115 (1989). The legal difficulties in these actions arise because of the special place that indecency occupies in the Supreme Court's First Amendment jurisprudence. While adults have a First Amendment right to engage in indecent speech, Sable, 492 U.S. at 126; see also Pacifica, 438 U.S. at 747-48, the Supreme Court has also held that the Government may, consistent with the Constitution, regulate indecency on radio and television, and in the "dial-a-porn" context, as long as the regulation does not operate as a complete ban. Thus, any regulation of indecency in these areas must give adults access to indecent speech, which is their right.
The Government may only regulate indecent speech for a compelling reason, and in the least restrictive manner. Sable, 492 U.S. at 126. "It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Id. This "most exacting scrutiny", Turner, 114 S. Ct. at 2459, requires the Government to "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." United States v. National Treasury Employees Union, 115 S. Ct. 1003, 1017 (1995) (citing Turner, 114 S. Ct. at 1017). Thus, although our analysis here must balance ends and means, the scales tip at the outset in plaintiffs' favor. This is so because "[r]egulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105, 116 (1991) (citation omitted).
The Government argues that this case is really about pornography on the Internet. Apart from hardcore and child pornography, however, the word pornography does not have a fixed legal meaning. When I use the word pornography in my analysis below, I refer to for-profit purveyors of sexually explicit, "adult" material similar to that at issue in Sable. See 492 U.S. at 118. Pornography is normally either obscene or indecent, as Justice Scalia noted in his concurrence in Sable. Id. at 132. I would avoid using such an imprecise (and overbroad) word, but I feel compelled to do so here, since Congress undoubtedly had such material in mind when it passed the CDA. See S. Rep. No. 230, 104th Cong., 2d Sess. 187-91 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 200-05 [hereinafter Senate Report]. Moreover, the Government has defended the Act before this court by arguing that the Act could be constitutionally applied to such material.
Plaintiffs have, as noted, moved for a preliminary injunction. The standards for such relief are well-settled. Plaintiffs seeking preliminary injunctive relief must show (1) "[a] reasonable probability of eventual success in the litigation" and (2) "irreparabl[e] injur[y] pendente lite" if relief is not granted. Acierno v. New Castle County, 40 F.2d 645, 653 (3d Cir. 1994). We must also consider, if appropriate, (3) "the possibility of harm to other interested persons from the grant or denial of the injunction", and (4) "the public interest". Id.; see also Opticians Ass'n v. Independent Opticians, 920 F.2d 187, 192 (3d Cir. 1990).
In a First Amendment challenge, a plaintiff who meets the first prong of the test for a preliminary injunction will almost certainly meet the second, since irreparable injury normally arises out of the deprivation of speech rights, "for even minimal periods of time". Elrod v. Burns, 427 U.S. 347, 373-74 (1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, 493 U.S. 848 (1989). Of course, neither the Government nor the public generally can claim an interest in the enforcement of an unconstitutional law. Thus, I focus my legal analysis today primarily on whether plaintiffs have shown a likelihood of success on their claim that the CDA is unconstitutional. The issues of irreparable harm to plaintiffs, harm to third parties, and the public interest all flow from that determination.(1)
Plaintiffs' challenge here is a "facial" one. A law that regulates the content of speech is facially invalid if it does not pass the "most exacting scrutiny" that we have described above, or if it would "penalize a substantial amount of speech that is constitutionally protected". Forsyth County v. Nationalist Movement, 112 S. Ct. 2395, 2401 (1992). This is so even if some applications would be "constitutionally unobjectionable". Id.; see also National Treasury Employees Union v. United States, 990 F.2d 1271, 1279-80 (D.C. Cir. 1993) (Randolph, J., concurring), aff'd, 115 S. Ct. 1003 (1995). Sometimes facial challenges require an inquiry into a party's "standing" (i.e., whether a party may properly challenge a law as facially invalid). See, e.g., Ferber, 458 U.S. at 767-79. At other times a facial challenge requires only an inquiry into the law's reach. See, e.g., R.A.V., 112 S. Ct. at 2547.(2) As I describe it in part C below, I have no question that plaintiffs here have standing to challenge the validity of the CDA, and, indeed, the Government has not seriously challenged plaintiffs' standing to do so. See, e.g., Virginia v. American Booksellers Assoc., 484 U.S. 383, 392 (1988). Thus, the focus is squarely on the merits of plaintiffs' facial challenge.(3)
I divide my legal analysis below into three parts. In Part B, I examine the traditional definition of indecency and relate it to the provisions of the CDA at issue in this action. From this analysis I conclude that Section 223(a) and Section 223(d) of the CDA reach the same kind of speech. My analysis also convinces me that plaintiffs are unlikely to succeed in their claim that the CDA is unconstitutionally vague. In Part C, I address the Government's argument that plaintiffs are not the CDA's target, nor would they likely face prosecution under the Act. Here, I conclude that plaintiffs could reasonably fear prosecution under the Act, even if some of their fears border on the farfetched. In Part D, I consider the legal implications of the special attributes of Internet communication, as well as the effect that the CDA would have on these attributes. In this Part I conclude that the disruptive effect of the CDA on Internet communication, as well as the CDA's broad reach into protected speech, not only render the Act unconstitutional but also would render unconstitutional any regulation of protected speech on this new medium.
B. Defining Indecency
Although no court of appeals has ever to my knowledge upheld a vagueness challenge to the meaning of "indecency", several recent cases have grappled with the elusive meaning of that word in the context of cable television and "dial-a-porn". Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995), cert. granted, 116 S. Ct. 471 (1996); Dial Information Serv. Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992); Information Providers Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866 (9th Cir. 1991).
In Alliance for Community Media, 56 F.3d at 123-25, for example, the District of Columbia Court of Appeals addressed prohibitions on indecent programming on certain cable television channels. That court noted that the FCC has codified the meaning of "'indecent' programming" on cable television as "programming that describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the cable medium." Id. at 112 (citing what is now 47 C.F.R. Section 76.701(g)).
The FCC took a similar approach to the definition of "indecency" in the "dial-a-porn" medium.(4) In Dial Information Services, 938 F.2d at 1540, the Second Circuit quoted the FCC's definition of indecent telephone communications in that context:
[I]n the dial-a-porn context, we believe it is appropriate to define indecency as the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium.
Id. at 1540 (citation omitted); see also Information Providers' Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866, 876 (9th Cir. 1991).
These three cases recognize that the FCC did not define "indecency" for cable and dial-a-porn in a vacuum. Rather, it borrowed from the Supreme Court's decision in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In that case (which I describe in greater detail below), the Supreme Court established the rough outline from which the FCC fashioned its three-part definition. For the first two parts of the test, the Supreme Court emphasized the "importance of context" in examining arguably indecent material. Id. at 747 n.25. "Context" in the Pacifica opinion includes consideration of both the particular medium from which the material originates and the particular community that receives the material. Id. at 746 (assuming that the Carlin monologue "would be protected in other contexts"); id. at 748-51 (discussing the attributes of broadcast); see also Information Providers' Coalition, 928 F.2d at 876 (discussing the "content/context dichotomy"). Second, the opinion limits its discussion to "patently offensive sexual and excretory language", Pacifica, 438 U.S. at 747, and this type of content has remained the FCC's touchstone. See, e.g., Alliance for Community Media, 56 F.3d at 112.(5)
We have quoted from the CDA extensively above and I will only briefly rehearse that discussion here. Section 223(a) of the CDA criminalizes "indecent" speech on the Internet. This is the "indecency" provision. Section 223(d) of the CDA addresses speech that, "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs". This is the "patently offensive" provision. The foregoing discussion leads me to conclude that these two provisions describe the same kind of speech. That is, the use of "indecent" in Section 223(a) is shorthand for the longer description in Section 223(d). Conversely, the longer description in Section 223(d) is itself the definition of "indecent" speech. I believe Congress could have used the word "indecent" in both Section 223(a) and Section 223(d), or it could have used the "patently offensive" description of Section 223(d) in Section 223(a), without a change in the meaning of the Act. I do not believe that Congress intended that this distinction alone would change the reach of either section of the CDA.(6)
The CDA's legislative history confirms this conclusion. There, the conference committee explicitly noted that Section 223(d) "codifies the definition of indecency from FCC v. Pacifica Foundation, 438 U.S. 726 (1978).... The conferees intend that the term indecency (and the rendition of the definition of that term in new section 502) has the same meaning as established in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989)." Senate Report at 188, reprinted in 1996 U.S.C.C.A.N. at 201-02. The legislative history makes clear that Congress did not intend to create a distinction in meaning when it used the generic term "indecency" in Section 223(a) and the definition of that term in Section 223(d).(7)
There is no doubt that the CDA requires the most stringent review for vagueness, since it is a criminal statute that "threatens to inhibit the exercise of constitutionally protected rights". Colautti v. Franklin, 439 U.S 379, 391 (1979); see also Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983); Grayned, 408 U.S. at 108-09. My analysis here nevertheless leads ineluctably to the conclusion that the definition of indecency is not unconstitutionally vague. The Miller definition of obscenity has survived such challenges, see, e.g., Hamling v. United States, 418 U.S. 87, 118-19 (1974); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57 (1989), and the definition of indecency contains a subset of the elements of obscenity. If the Miller test "give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly", Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), the omission of parts of that test does not warrant a contrary conclusion. See Dial Information Services, 938 F.2d at 1541-42. Similarly, since the definition of indecency arose from the Supreme Court itself in Pacifica, we may fairly imply that the Court did not believe its own interpretation to invite "arbitrary and discriminatory enforcement" or "abut upon sensitive areas of basic First Amendment freedoms". Grayned, 408 U.S. at 108-109 (citations and alterations omitted). Sable, while not explicitly addressing the issue of vagueness, reinforces this conclusion. See Information Providers' Coalition, 928 F.2d at 875-76 (citing Sable, 492 U.S. at 126-27). It follows, then, that plaintiffs' vagueness challenge is not likely to succeed on the merits and does not support preliminary injunctive relief.
The possible interpretations of the defenses in Section 223(e) do not alter this conclusion. As a matter of statutory construction, Section 223(e)(5)(B) could not be clearer. This section, which imports the dial-a-porn defenses into the CDA, creates "specific and objective" methods to avoid liability. See Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984). Section 223(e)(5)(A) is more suspect, since it arguably "fail[s] to describe with sufficient particularity what a suspect must do in order to satisfy" it. Kolender 461 U.S. at 361.(8) Yet even though the defenses in both sections are unavailable to many Internet users, their unavailability does not render the liability provisions vague. Rather, their unavailability just transforms Section 223(a) and Section 223(d) into a total ban, in violation of Butler v. Michigan, 352 U.S. 380, 383 (1957), and Sable, 492 U.S. at 127, 131. I am sensitive to plaintiffs' arguments that the statute, as written, does not create safe harbors through which all Internet users may shield themselves from liability. Transcript of May 10, 1996, at 37-38. Here again, however, the absence of safe harbors relates to the (over)breadth of a statute, and not its vagueness. See Sable, 492 U.S. at 127, 131.
C. Plaintiffs' Likelihood of Prosecution Under the Act
The Government has consistently argued that the speech of many of the plaintiffs here is almost certainly not indecent. They point, for example, to the educational and political content of plaintiffs' speech, and they also suggest that the occasional curse word in a card catalogue will probably not result in prosecution. See Senate Report at 189, reprinted in 1996 U.S.C.C.A.N. at 203 ("Material with serious redeeming value is quite obviously intended to edify and educate, not to offend."). In this section I address that argument.
I agree with the Government that some of plaintiffs' claims are somewhat exaggerated, but hyperbolic claims do not in themselves weigh in the Government's favor. In recent First Amendment challenges, the Supreme Court has itself paid close attention to extreme applications of content-based laws.
In Simon & Schuster, Inc. v. Members of the New York State Crimes Victim Board, 502 U.S. 105 (1991), the Court addressed the constitutionality of a law that required criminals to turn over to their victims any income derived from books, movies, or other commercial exploitation of their crimes. Id. at 504-05. In its opinion, the Court evaluated the argument of an amicus curiae that the law's reach could include books such as The Autobiography of Malcolm X, Civil Disobedience, and Confessions of Saint Augustine, and authors such as Emma Goldman, Martin Luther King, Jr., Sir Walter Raleigh, Jesse Jackson, and Bertrand Russell. Id. at 121-22. The Court credited the argument even while recognizing that it was laced with "hyperbole":
The argument that [the] statute . . . would prevent publication of all of these works is hyperbole -- some would have been written without compensation -- but the... law clearly reaches a wide range of literature that does not enable a criminal to profit from his crime while a victim remains uncompensated.
Id. at 122. If a content-based law "can produce such an outcome", id. at 123 (emphasis added), then Simon & Schuster allows us to consider those outcomes in our analysis.
Even more recently, in United States v. National Treasury Employees Union, 115 S. Ct. 1003 (1995), the Court addressed the constitutionality of a law that banned federal employees from accepting honoraria for publications unrelated to their work. Id. at 1008. The Court noted that the law would reach "literary giants like Nathaniel Hawthorne and Herman Melville, . . . Walt Whitman, . . . and Bret Harte". Id. at 1012. This concern resurfaced later in the opinion, see id. at 1015 ("[W]e cannot ignore the risk that [the ban] might deprive us of the work of a future Melville or Hawthorne."), even though a footnote immediately renders this concern at least hyperbolic:
These authors' familiar masterworks would survive the honoraria ban as currently administered. Besides exempting all books, the [regulations implementing the ban] protect fiction and poetry from the ban's coverage, although the statute's language is not so clear. But some great artists deal in fact as well as fiction, and some deal in both.
Id. n.16 (citations omitted).
Here, even though it is perhaps unlikely that the Carnegie Library will ever stand in the dock for putting its card catalogue online, or that the Government will hale the ACLU into court for its online quiz of the seven dirty words, we cannot ignore that the Act could reach these activities. The definition of indecency, like the definition of obscenity, is not a rigid formula. Rather, it confers a large degree of autonomy to individual communities to set the bounds of decency for themselves. Cf. Sable, 492 U.S. at 125-26. This is as it should be, since this flexibility recognizes that ours is a country with diverse cultural and historical roots. See, e.g., Hamling, 418 U.S. at 104 ("A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a 'reasonable' person in other areas of the law.").
Putting aside hyperbolic application, I also have little doubt that some communities could well consider plaintiffs' speech indecent, and these plaintiffs could -- perhaps should -- have a legitimate fear of prosecution. In Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), the District of Columbia Court of Appeals summarized three broadcasts that the FCC found indecent in the late 1980s:
The offending morning broadcast . . . contained "explicit references to masturbation, ejaculation, breast size, penis size, sexual intercourse, nudity, urination, oral-genital contact, erections, sodomy, bestiality, menstruation and testicles." The remaining two were similarly objectionable.
Id. at 657 (citing In re Infinity Broadcasting Corp., 3 FCC R. 930, 932 (1987)). In Infinity Broadcasting, one of the broadcasts that the FCC found indecent was an excerpt of a play about AIDS, finding that the excerpts "contained the concentrated and repeated use of vulgar and shocking language to portray graphic and lewd depictions of excretion, anal intercourse, ejaculation, masturbation, and oral-genital sex". 3 FCC R. at 934.(9) To the FCC, even broadcasts with "public value . . . addressing the serious problems posed by AIDS" can be indecent if "that material is presented in a manner that is patently offensive". Id. (emphasis in original).(10)
Yet, this is precisely the kind of speech that occurs, for example, on Critical Path AIDS Project's Web site, which includes safer sex instructions written in street language for easy comprehension. The Web site also describes the risk of HIV transmission for particular sexual practices. The FCC's implication in In the Matter of King Broadcasting Co., 5 FCC R. 2971 (1990), that a "candid discussion[] of sexual topics" on television was decent in part because it was "not presented in a pandering, titillating or vulgar manner" would be unavailing to Critical Path, other plaintiffs, and some amici. These organizations want to pander and titillate on their Web sites, at least to a degree, to attract a teen audience and deliver their message in an engaging and coherent way.(11)
In In re letter to Merrell Hansen, 6 FCC R. 3689 (1990), the FCC found indecent a morning discussion between two announcers regarding Jim Bakker's alleged rape of Jessica Hahn. Id. Here, too, the FCC recognized that the broadcast had public value. Id. (noting that the broadcast concerned "an incident that was at the time 'in the news'"). Yet, under the FCC's interpretation of Pacifica, "the merit of a work is 'simply one of the many variables' that make up a work's context". Id. (citation omitted).
One of the plaintiffs here, Stop Prisoner Rape, Inc., has as its core purpose the issue of prison rape. The organization creates chat rooms in which members can discuss their experiences. Some amici have also organized Web sites dedicated to survivors of rape, incest, and other sexual abuse. These Web sites provide fora for the discussion and contemplation of shared experiences. The operators of these sites, and their participants, could legitimately fear prosecution under the CDA.
With respect to vulgarity, the Government is in a similarly weak position. In Pacifica, the Supreme Court held that multiple repetition of expletives could be indecent. Pacifica, 438 U.S. at 750. Although the FCC did not follow this rationale with respect to a broadcast of "a bona fide news story" on National Public Radio, Letter to Mr. Peter Branton, 6 FCC R. 610 (1991), aff'd on other grounds sub nom. Branton v. FCC, 993 F.2d 906, 908 (D.C. Cir. 1993), the ACLU, a plaintiff here, could take little comfort from that administrative decision. It would need to discern, for example, whether a chat room that it organized to discuss the meaning of the word fuck was more like the Carlin monologue or more like a National Public Radio broadcast.(12) Plaintiffs' expert would have found expletives indecent in a community consisting only of himself,(13) and his views undoubtedly -- and reasonably -- reflect the view of many people.
In sum, I am less confident than the Government that societal mores have changed so drastically since Pacifica that an online equivalent of the Carlin monologue, or the Carlin monologue itself online, would pass muster under the CDA. Under existing precedent, plaintiffs' fear of prosecution under the Act is legitimate, even though they are not the pornographers Congress had in mind when it passed the CDA.(14) Cf. City of Houston v. Hill, 482 U.S. 451, 459 (1987). My discussion of the effect and reach of the CDA, therefore, applies both to plaintiffs' hyperbolic concerns and to their very real ones.
D. A Medium-Specific Analysis
The Internet is a new medium of mass communication.(15) As such, the Supreme Court's First Amendment jurisprudence compels us to consider the special qualities of this new medium in determining whether the CDA is a constitutional exercise of governmental power. Relying on these special qualities, which we have described at length in our Findings of fact above, I conclude that the CDA is unconstitutional and that the First Amendment denies Congress the power to regulate protected speech on the Internet. This analysis and conclusions are consistent with Congress's intent to avoid tortuous and piecemeal review of the CDA by authorizing expedited, direct review in the Supreme Court "as a matter of right" of interlocutory, and not merely final, orders upholding facial challenges to the Act. See Section 561(b) of the Telecommunications Act of 1996.(16)
1. The Differential Treatment of Mass Communication Media
Nearly fifty years ago, Justice Jackson recognized that "[t]he moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each... is a law unto itself". Kovacs v. Cooper, 336 U.S. 77, 97 (1949) (Jackson, J., concurring). The Supreme Court has expressed this sentiment time and again since that date, and differential treatment of the mass media has become established First Amendment doctrine. See, e.g., Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2456 (1994) ("It is true that our cases have permitted more intrusive regulation of broadcast speakers than of speakers in other media."); Pacifica, 438 U.S. at 748 ("We have long recognized that each medium of expression presents special First Amendment problems."); City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1974) ("Different communications media are treated differently for First Amendment purposes.") (Blackmun, J., concurring); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500-01 (1981) (plurality opinion) ("This Court has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression."). Thus, the Supreme Court has established different rules for print, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), broadcast radio and television, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), cable television, Turner, 114 S. Ct. at 2456-57, and even billboards, Metromedia, 453 U.S. at 501, and drive-in movie theaters, Erzoznik v. City of Jacksonville, 422 U.S. 205 (1975).
This medium-specific approach to mass communication examines the underlying technology of the communication to find the proper fit between First Amendment values and competing interests. In print media, for example, the proper fit generally forbids governmental regulation of content, however minimal. Tornillo, 418 U.S. at 258. In other media (billboards, for example), the proper fit may allow for some regulation of both content and of the underlying technology (such as it is) of the communication. Metromedia, 453 U.S. at 502.
Radio and television broadcasting present the most expansive approach to medium-specific regulation of mass communication. As a result of the scarcity of band widths on the electromagnetic spectrum, the Government holds broad authority both to parcel out the frequencies and to prohibit others from speaking on the same frequency:
As a general matter, there are more would-be broadcasters than frequencies available in the electromagnetic spectrum. And if two broadcasters were to attempt to transmit over the same frequency in the same locale, they would interfere with one another's signals, so that neither could be heard at all. The scarcity of broadcast frequencies thus required the establishment of some regulatory mechanism to divide the electromagnetic spectrum and assign specific frequencies to particular broadcasters.
Turner, 114 S. Ct. at 2456 (citing FCC v. League of Women Voters, 468 U.S. 364 (1984)).
This scarcity also allows the Government to regulate content even after it assigns a license:
In addition, the inherent physical limitation on the number of speakers who may use the broadcast medium has been thought to require some adjustment in traditional First Amendment analysis to permit the Government to place limited content restraints, and impose certain affirmative obligations, on broadcast licensees.
Id. at 2457 (citing Red Lion, 395 U.S. at 390-95; National Broadcasting Co. v. United States, 319 U.S. 190 (1943)).
The broadcasting cases firmly establish that the Government may force a licensee to offer content to the public that the licensee would otherwise not offer, thereby assuring that radio and television audiences have a diversity of content. In broadcasting, "[i]t is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial". Red Lion, 395 U.S. at 390; see also CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) ("A licensed broadcaster is 'granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations.'") (citation omitted); Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 110-11 (1973). These content restrictions include punishing licensees who broadcast inappropriate but protected speech at an impermissible time. Pacifica, 438 U.S. at 750-51.
In this case, the Government relies on the Pacifica decision in arguing that the CDA is a constitutional exercise of governmental power. Since the CDA regulates indecent speech, and since Pacifica authorizes governmental regulation of indecent speech (so the Government's argument goes), it must follow that the CDA is a valid exercise of governmental power. That argument, however, ignores Pacifica's roots as a decision addressing the proper fit between broadcasting and the First Amendment. The argument also assumes that what is good for broadcasting is good for the Internet.
2. The Scope of the Pacifica Decision
In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court first decided whether the Government had the power to regulate indecent speech. Id. at 729. In Pacifica, a radio listener complained about the broadcast of George Carlin's "Filthy Words" monologue at 2:00 p.m. on a Tuesday afternoon. Id. at 729-30. The Carlin monologue was replete with "the words you couldn't say on the public... airwaves . . . , ever", and the listener had tuned in while driving with his young son in New York. Id. The FCC issued a declaratory order, holding that it could have subjected the Pacifica Foundation (owner of the radio station) to an administrative sanction. Id. at 730. In its order the FCC also described the standards that it would use in the future to regulate indecency in the broadcast medium. Id. at 731. The Supreme Court upheld the FCC's decision and confirmed the power of that agency to regulate indecent speech. Id. at 750-51.
The rationale of Pacifica rested on three overlapping considerations. First, using as its example the Carlin monologue before it, the Court weighed the value of indecent speech and concluded that such speech "lie[s] at the periphery of First Amendment concerns." Id. at 743. Although the Court recognized that the FCC had threatened to punish Pacifica based on the content of the Carlin monologue, id. at 742, it found that the punishment would have been permissible because four-letter words "offend for the same reasons that obscenity offends." Id. at 746 (footnote omitted). The Court then described the place of four-letter words "in the hierarchy of first amendment values":
Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Id. at 746 (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).
Second, the Court recognized that "broadcasting . . . has received the most limited First Amendment protection." Id. at 748. The Government may regulate broadcast consistent with the Constitution, even though the same regulation would run afoul of the First Amendment in the print medium. Id. (comparing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)). This is so because broadcasting has a "uniquely pervasive presence in the lives of all Americans" and "is uniquely accessible to children, even those too young to read." Pacifica, 438 U.S. at 748-49.
Third, the Court found the FCC's sanction -- an administrative sanction -- to be an appropriate means of regulating indecent speech. At the outset of the opinion, the Court disclaimed that its holding was a "consider[ation of] any question relating to the possible application of Section 1464 as a criminal statute." Id. at 739 n.13. Later in the opinion, the Court "emphasize[d] the narrowness of [its] holding", and explicitly recognized that it had not held that the Carlin monologue would justify a criminal prosecution. Id. at 750. Instead, the Court allowed the FCC to regulate indecent speech with administrative penalties under a "nuisance" rationale -- "like a pig in the parlor instead of the barnyard." Id. at 750 (citation omitted).
Time has not been kind to the Pacifica decision. Later cases have eroded its reach, and the Supreme Court has repeatedly instructed against overreading the rationale of its holding.
First, in Bolger v. Young Drug Products Corp., 463 U.S. 60 (1983), the Supreme Court refused to extend Pacifica to a law unrelated to broadcasting. In that case, a federal law prohibited the unsolicited mailing of contraceptive advertisements. Id. at 61. The Government defended the law by claiming an interest in protecting children from the advertisements. The Court rejected this argument as overbroad:
In [Pacifica], this Court did recognize that the Government's interest in protecting the young justified special treatment of an afternoon broadcast heard by adults as well as children. At the same time, the majority "emphasize[d] the narrowness of our holding", explaining that broadcasting is "uniquely pervasive" and that it is "uniquely accessible to children, even those too young to read." The receipt of mail is far less intrusive and uncontrollable. Our decisions have recognized that the special interest of the Federal Government in regulation of the broadcast media does not readily translate into a justification for regulation of other means of communication.
Id. at 74 (citations and footnotes omitted) (emphasis in original) see also id. at 72 ("[T]he 'short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned.'") (citation omitted) (alterations in original).
Second, in Sable Communications v. FCC, 492 U.S. 115 (1989), the Supreme Court again limited Pacifica. In that case, the Court considered the validity of a ban on indecent "dial-a-porn" communications. Id. at 117-18.(17) As in Bolger, the Government argued that Pacifica justified a complete ban of that form of speech. The Supreme Court disagreed, holding instead that Pacifica's "emphatically narrow" holding arose out of the "unique attributes of broadcasting". Id. at 127. The Court held that the ban was unconstitutional. Id. at 131.
Sable narrowed Pacifica in two ways. First, the Court implicitly rejected Pacifica's nuisance rationale for dial-a-porn, holding instead that the Government could only regulate the medium "by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms". Id. at 126 (citation omitted). Under this strict scrutiny, "[i]t is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Id.; see also Fabulous Assoc. v. Pennsylvania Pub. Util. Comm., 896 F.2d 780, 784-85 (3d Cir. 1990).
Second, the Court concluded that the law, like a law it had struck down in 1957, "denied adults their free speech rights by allowing them to read only what was acceptable for children". Sable, 492 U.S. at 126 (citing Butler v. Michigan, 352 U.S. 380 (1957)). Thus, any regulation of dial-a-porn would have to give adults the opportunity to partake of that medium. Id. This conclusion echoes Bolger. See Bolger, 463 U.S. at 74 ("The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.").(18)
Finally, in Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445 (1994), the Supreme Court implicitly limited Pacifica once again when it declined to adopt the broadcast rationale for the medium of cable television. The Court concluded that the rules for broadcast were "inapt" for cable because of the "fundamental technological differences between broadcast and cable transmission". Id. at 2457.
The legal significance to this case of Turner's refusal to apply the broadcast rules to cable television cannot be overstated. Turner's holding confirms beyond doubt that the holding in Pacifica arose out of the scarcity rationale unique to the underlying technology of broadcasting, and not out of the end product that the viewer watches. That is, cable television has no less of a "uniquely pervasive presence" than broadcast television, nor is cable television more "uniquely accessible to children" than broadcast. See Pacifica, 438 U.S. at 748-49. From the viewer's perspective, cable and broadcast television are identical: moving pictures with sound from a box in the home. Whether one receives a signal through an antenna or through a dedicated wire, the end result is just television in either case. In declining to extend broadcast's scarcity rationale for cable, the Supreme Court also implicitly limited Pacifica, the holding of which flows directly from that rationale.(19)
Turner thus confirms that the analysis of a particular medium of mass communication must focus on the underlying technology that brings the information to the user. In broadcast, courts focus on the limited number of band widths and the risk of interference with those frequencies. See, e.g., Turner, 114 S. Ct. at 2456-57. In cable, courts focus on the number of channels, the different kinds of cable operators, and the cost to the consumer. Id. at 2452.
I draw two conclusions from the foregoing analysis. First, from the Supreme Court's many decisions regulating different media differently, I conclude that we cannot simply assume that the Government has the power to regulate protected speech over the Internet, devoting our attention solely to the issue of whether the CDA is a constitutional exercise of that power. Rather, we must also decide the validity of the underlying assumption as well, to wit, whether the Government has the power to regulate protected speech at all. That decision must take into account the underlying technology, and the actual and potential reach, of that medium. Second, I conclude that Pacifica's holding is not persuasive authority here, since plaintiffs and the Government agree that Internet communication is an abundant and growing resource. Nor is Sable persuasive authority, since the Supreme Court's holding in that case addressed only one particular type of communication (dial-a-porn), and reached no conclusions about the proper fit between the First Amendment and telephone communications generally. Again, plaintiffs and the Government here agree that the Internet provides content as broad as the imagination.
3. The Effect of the CDA and the Novel Characteristics of Internet Communication
Over the course of five days of hearings and many hundreds of pages of declarations, deposition transcripts, and exhibits, we have learned about the special attributes of Internet communication. Our Findings of fact -- many of them undisputed -- express our understanding of the Internet. These Findings lead to the conclusion that Congress may not regulate indecency on the Internet at all.
Four related characteristics of Internet communication have a transcendent importance to our shared holding that the CDA is unconstitutional on its face. We explain these characteristics in our Findings of fact above, and I only rehearse them briefly here. First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers.
To understand how disruptive the CDA is to Internet communication, it must be remembered that the Internet evolved free of content-based considerations. Before the CDA, it only mattered how, and how quickly, a particular packet of data travelled from one point on the Internet to another. In its earliest incarnation as the ARPANET, the Internet was for many years a private means of access among the military, defense contractors, and defense-related researchers. The developers of the technology focused on creating a medium designed for the rapid transmittal of the information through overlapping and redundant connections, and without direct human involvement. Out of these considerations evolved the common transfer protocols, packet switching, and the other technology in which today's Internet users flourish. The content of the data was, before the CDA, an irrelevant consideration.
It is fair, then, to conclude that the benefits of the Internet to private speakers arose out of the serendipitous development of its underlying technology. As more networks joined the "network of networks" that is the Internet, private speakers have begun to take advantage of the medium. This should not be surprising, since participation in the medium requires only that networks (and the individual users associated with them) agree to use the common data transfer protocols and other medium-specific technology. Participation does not require, and has never required, approval of a user's or network's content.
After the CDA, however, the content of a user's speech will determine the extent of participation in the new medium. If a speaker's content is even arguably indecent in some communities, he must assess, inter alia, the risk of prosecution and the cost of compliance with the CDA. Because the creation and posting of a Web site allows users anywhere in the country to see that site, many speakers will no doubt censor their speech so that it is palatable in every community. Other speakers will decline to enter the medium at all. Unlike other media, there is no technologically feasible way for an Internet speaker to limit the geographical scope of his speech (even if he wanted to), or to "implement[] a system for screening the locale of incoming" requests. Sable 492 U.S. at 125.
The CDA will, without doubt, undermine the substantive, speech-enhancing benefits that have flowed from the Internet. Barriers to entry to those speakers affected by the Act would skyrocket, especially for non-commercial and not-for-profit information providers. Such costs include those attributable to age or credit card verification (if possible), tagging (if tagging is even a defense under the Act(20)), and monitoring or review of one's content.
The diversity of the content will necessarily diminish as a result. The economic costs associated with compliance with the Act will drive from the Internet speakers whose content falls within the zone of possible prosecution. Many Web sites, newsgroups, and chat rooms will shut down, since users cannot discern the age of other participants. In this respect, the Internet would ultimately come to mirror broadcasting and print, with messages tailored to a mainstream society from speakers who could be sure that their message was likely decent in every community in the country.
The CDA will also skew the relative parity among speakers that currently exists on the Internet. Commercial entities who can afford the costs of verification, or who would charge a user to enter their sites, or whose content has mass appeal, will remain unaffected by the Act. Other users, such as Critical Path or Stop Prisoner Rape, or even the ACLU, whose Web sites before the CDA were as equally accessible as the most popular Web sites, will be profoundly affected by the Act. This change would result in an Internet that mirrors broadcasting and print, where economic power has become relatively coterminous with influence.
Perversely, commercial pornographers would remain relatively unaffected by the Act, since we learned that most of them already use credit card or adult verification anyway. Commercial pornographers normally provide a few free pictures to entice a user into proceeding further into the Web site. To proceed beyond these teasers, users must provide a credit card number or adult verification number. The CDA will force these businesses to remove the teasers (or cover the most salacious content with cgi scripts), but the core, commercial product of these businesses will remain in place.
The CDA's wholesale disruption on the Internet will necessarily affect adult participation in the medium. As some speakers leave or refuse to enter the medium, and others bowdlerize their speech or erect the barriers that the Act envisions, and still others remove bulletin boards, Web sites, and newsgroups, adults will face a shrinking ability to participate in the medium. Since much of the communication on the Internet is participatory, i.e., is a form of dialogue, a decrease in the number of speakers, speech fora, and permissible topics will diminish the worldwide dialogue that is the strength and signal achievement of the medium.
It is no answer to say that the defenses and exclusions of Section 223(e) mitigate the disruptive forces of the Act. We have already found as facts that the defenses either are not available to plaintiffs here or would impose excessive costs on them. These defenses are also unavailable to participants in specific forms of Internet communication.
I am equally dubious that the exclusions of Section 223(e) would provide significant relief from the Act. The "common carrier" exclusion of Section 223(e)(1), for example, would not insulate America Online from liability for the content it provides to its subscribers. It is also a tricky question whether an America Online chat room devoted to, say, women's reproductive health, is or is not speech of the service itself, since America Online, at least to some extent, "creat[es] the content of the communication" simply by making the room available and assigning it a topic. Even if America Online has no liability under this example, the service might legitimately choose not to provide fora that led to the prosecution of its subscribers. Similarly, it is unclear whether many caching servers are devoted "solely" to the task of "intermediate storage". The "vicarious liability" exclusion of Section 223(e)(4) would not, for example, insulate either a college professor or her employer from liability for posting an indecent online reading assignment for her freshman sociology class.
We must of course give appropriate deference to the legislative judgments of Congress. See Sable, 492 U.S. at 129; Turner, 114 S. Ct. at 2472-73 (Blackmun, J., concurring). After hearing the parties' testimony and reviewing the exhibits, declarations, and transcripts, we simply cannot in my view defer to Congress's judgment that the CDA will have only a minimal impact on the technology of the Internet, or on adult participation in the medium. As in Sable, "[d]eference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake." Sable, 492 U.S. at 129 (citation omitted). Indeed, the Government has not revealed Congress's "extensive record" in addressing this issue, Turner, 114 S. Ct. at 2472 (Blackmun, J., concurring), or otherwise convinced me that the record here is somehow factually deficient to the record before Congress when it passed the Act.
4. Diversity and Access on the Internet
Nearly eighty years ago, Justice Holmes, in dissent, wrote of the ultimate constitutional importance of the "free trade in ideas":
[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
For nearly as long, critics have attacked this much-maligned "marketplace" theory of First Amendment jurisprudence as inconsistent with economic and practical reality. Most marketplaces of mass speech, they charge, are dominated by a few wealthy voices. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 248-50 (1974). These voices dominate -- and to an extent, create -- the national debate. Id. Individual citizens' participation is, for the most part, passive. Id. at 251. Because most people lack the money and time to buy a broadcast station or create a newspaper, they are limited to the role of listeners, i.e., as watchers of television or subscribers to newspapers. Id.
Economic realities limit the number of speakers even further. Newspapers competing with each other and with (free) broadcast tend toward extinction, as fixed costs drive competitors either to consolidate or leave the marketplace. Id. at 249-50. As a result, people receive information from relatively few sources:
The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper's being owned by the same interests which own a television station and a radio station, are important components of this trend toward concentration of control of outlets to inform the public.
The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion.
Id. at 249.
The Supreme Court has also recognized that the advent of cable television has not offered significant relief from this problem. Although the number of cable channels is exponentially greater than broadcast, Turner, 114 S. Ct. at 2452, cable imposes relatively high entry costs, id. at 2451-52 (noting that the creation of a cable system requires "[t]he construction of [a] physical infrastructure").
Nevertheless, the Supreme Court has resisted governmental efforts to alleviate these market dysfunctions. In Tornillo, the Supreme Court held that market failure simply could not justify the regulation of print, 418 U.S. at 258, regardless of the validity of the criticisms of that medium, id. at 251. Tornillo invalidated a state "right-of-reply" statute, which required a newspaper critical of a political candidate to give that candidate equal time to reply to the charges. Id. at 244. The Court held that the statute would be invalid even if it imposed no cost on a newspaper, because of the statute's intrusion into editorial discretion:
A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials -- whether fair or unfair -- constitute the exercise of editorial control and judgment.
Id. at 258.
Similarly, in Turner, the Supreme Court rejected the Government's argument that market dysfunction justified deferential review of speech regulations for cable television. Even recognizing that the cable market "suffers certain structural impediments", Turner, 114 S. Ct. at 2457, the Court could not accept the Government's conclusion that this dysfunction justified broadcast-type standards of review, since "the mere assertion of dysfunction or failure in a speech market, without more, is not sufficient to shield a speech regulation from the First Amendment standards applicable to nonbroadcast media." Id. at 2458. "[L]aws that single out the press, or certain elements thereof, for special treatment 'pose a particular danger of abuse by the State,' and so are always subject to at least some degree of heightened First Amendment scrutiny." Id. (citation omitted).(21) The Court then eloquently reiterated that government-imposed, content-based speech regulations are generally inconsistent with "[o]ur political system and cultural life":
At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions "rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace."
Id. (citation omitted).
Both Tornillo and Turner recognize, in essence, that the cure for market dysfunction (government-imposed, content-based speech restrictions) will almost always be worse than the disease. Here, however, I am hard-pressed even to identify the disease. It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen. The plaintiffs in these actions correctly describe the "democratizing" effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen.
Indeed, the Government's asserted "failure" of the Internet rests on the implicit premise that too much speech occurs in that medium, and that speech there is too available to the participants. This is exactly the benefit of Internet communication, however. The Government, therefore, implicitly asks this court to limit both the amount of speech on the Internet and the availability of that speech. This argument is profoundly repugnant to First Amendment principles.
My examination of the special characteristics of Internet communication, and review of the Supreme Court's medium-specific First Amendment jurisprudence, lead me to conclude that the Internet deserves the broadest possible protection from government-imposed, content-based regulation. If "the First Amendment erects a virtually insurmountable barrier between government and the print media", Tornillo, 418 U.S. at 259 (White, J., concurring), even though the print medium fails to achieve the hoped-for diversity in the marketplace of ideas, then that "insurmountable barrier" must also exist for a medium that succeeds in achieving that diversity. If our Constitution "prefer[s] 'the power of reason as applied through public discussion'", id. (citation omitted), "[r]egardless of how beneficent-sounding the purposes of controlling the press might be", id., even though "occasionally debate on vital matters will not be comprehensive and . . . all viewpoints may not be expressed", id. at 260, a medium that does capture comprehensive debate and does allow for the expression of all viewpoints should receive at least the same protection from intrusion.
Finally, if the goal of our First Amendment jurisprudence is the "individual dignity and choice" that arises from "putting the decision as to what views shall be voiced largely into the hands of each of us", Leathers v. Medlock, 499 U.S. 439, 448-49 (1991) (citing Cohen v. California, 403 U.S. 15, 24 (1971)), then we should be especially vigilant in preventing content-based regulation of a medium that every minute allows individual citizens actually to make those decisions. Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig. Cf. Butler, 352 U.S. at 383.
5. Protection of Children from Pornography
I accept without reservation that the Government has a compelling interest in protecting children from pornography. The proposition finds one of its clearest expressions in Mill, who recognized that his exposition regarding liberty itself "is meant to apply only to human beings in the maturity of their faculties":
We are not speaking of children or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others must be protected against their own actions as well as against external injury.
John Stuart Mill, On Liberty 69 (Gertrude Himmelfarb ed., Penguin Books 1982) (1859), cited in Harry Kalven Jr., A Worthy Tradition 54 (Jamie Kalven ed. 1988).
This rationale, however, is as dangerous as it is compelling. Laws regulating speech for the protection of children have no limiting principle, and a well-intentioned law restricting protected speech on the basis of its content is, nevertheless, state-sponsored censorship. Regulations that "drive certain ideas or viewpoints from the marketplace" for children's benefit, Simon & Schuster, 502 U.S. at 116, risk destroying the very "political system and cultural life", Turner, 114 S. Ct. at 2458, that they will inherit when they come of age.
I therefore have no doubt that a Newspaper Decency Act, passed because Congress discovered that young girls had read a front page article in the New York Times on female genital mutilation in Africa, would be unconstitutional. Tornillo, 418 U.S. at 258. Nor would a Novel Decency Act, adopted after legislators had seen too many pot-boilers in convenience store book racks, pass constitutional muster. Butler, 352 U.S. at 383. There is no question that a Village Green Decency Act, the fruit of a Senator's overhearing of a ribald conversation between two adolescent boys on a park bench, would be unconstitutional. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). A Postal Decency Act, passed because of constituent complaints about unsolicited lingerie catalogues, would also be unconstitutional. Bolger, 463 U.S. at 73. In these forms of communication, regulations on the basis of decency simply would not survive First Amendment scrutiny.
The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result.
Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar -- in a word, "indecent" in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates.
Moreover, the CDA will almost certainly fail to accomplish the Government's interest in shielding children from pornography on the Internet. Nearly half of Internet communications originate outside the United States, and some percentage of that figure represents pornography. Pornography from, say, Amsterdam will be no less appealing to a child on the Internet than pornography from New York City, and residents of Amsterdam have little incentive to comply with the CDA.(22)
My analysis does not deprive the Government of all means of protecting children from the dangers of Internet communication. The Government can continue to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalizing obscenity and child pornography. See United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995). As we learned at the hearing, there is also a compelling need for public education about the benefits and dangers of this new medium, and the Government can fill that role as well. In my view, our action today should only mean that the Government's permissible supervision of Internet content stops at the traditional line of unprotected speech.
Parents, too, have options available to them. As we learned at the hearing, parents can install blocking software on their home computers, or they can subscribe to commercial online services that provide parental controls. It is quite clear that powerful market forces are at work to expand parental options to deal with these legitimate concerns. More fundamentally, parents can supervise their children's use of the Internet or deny their children the opportunity to participate in the medium until they reach an appropriate age. See Fabulous, 896 F.2d at 788-89 (noting that "our society has traditionally placed" these decisions "on the shoulders of the parent").
E. Conclusion
Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.
True it is that many find some of the speech on the Internet to be offensive, and amid the din of cyberspace many hear discordant voices that they regard as indecent. The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs' experts put it with such resonance at the hearing:
What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos.(23)
Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.
For these reasons, I without hesitation hold that the CDA is unconstitutional on its face.
AND NOW, this 11th day of June, 1996, upon consideration of plaintiffs' motions for preliminary injunction, and the memoranda of the parties and amici curiae in support and opposition thereto, and after hearing, and upon the findings of fact and conclusions of law set forth in the accompanying Adjudication, it is hereby ORDERED that:
1. The motions are GRANTED;
2. Defendant Attorney General Janet Reno, and all acting under her direction and control, are PRELIMINARILY ENJOINED from enforcing, prosecuting, investigating or reviewing any matter premised upon:
(a) Sections 223(a)(1)(B) and 223(a)(2) of the Communications Decency Act of 1996 ("the CDA"), Pub. L. No. 104- 104, Section 502, 110 Stat. 133, 133-36, to the extent such enforcement, prosecution, investigation, or review are based upon allegations other than obscenity or child pornography; and
(b) Sections 223(d)(1) and 223(d)(2) of the CDA;
3. Pursuant to Fed. R. Civ. P. 65(c), plaintiffs need not post a bond for this injunction, see Temple Univ. v. White, 941 F.2d 201, 220 (3d Cir. 1991), cert. denied sub nom. Snider v. Temple Univ., 502 U.S. 1032 (1992); and
4. The parties shall advise the Court, in writing, as to their views regarding the need for further proceedings on the later of (a) thirty days from the date of this Order, or (b) ten days after final appellate review of this Order.
BY THE COURT:
Dolores K. Sloviter, C.J.
U.S. Court of Appeals
For the Third Circuit
Ronald L. Buckwalter, J.
Stewart Dalzell, J.
ENDNOTES
(1)By Order dated March 13, 1996, we asked the parties to submit their views on questions regarding allocation of the burdens of proof in these cases. Since I believe that the outcome of these cases is clear regardless of the allocation of proof between the parties, none of my conclusions in this opinion requires me to choose between the arguments that the parties have presented to us.
(2)Although I do not believe the statue is unconstitutionally vague, I agree with Judge Buckwalter that the Government's promise not to enforce the plain reach of the law cannot salvage its overbreadth. Even accepting the Government's argument that prosecution of non-obscene pornography would be a "legitimate application" of the CDA, City of Houston v. Hill, 482 U.S. 451, 459 (1987), it is clear that the Act would "make unlawful a substantial amount of constitutionally protected conduct", id. As in Hill, the Government's circular reasoning -- that the law is constitutional because prosecutors would only apply it to those against whom it could constitutionally be applied -- must fail. See id. at 464-67.
(3)Plaintiffs have argued that we may consider their challenge under the standards governing both "facial" and "as-applied" challenges. That is, they suggest that we may pass judgment on the decency of the plaintiffs' speech, even if we are unable to conclude that the act is facially unconstitutional. Surely this procedural confusion arises out of the three opinions of the D.C. Circuit in National Treasury Employees Union v. United States, 990 F.3d 1271, 1279-80 (D.C. Cir. 1993), aff'd, 115 S. Ct. 1003.
I doubt that we could undertake an as-applied inquiry, since we do not know the exact content of plaintiffs' speech. Indeed, it is impossible to know the exact content of some plaintiffs' speech, since plaintiffs themselves cannot know that content. America Online, for example, cannot know what its subscribers will spontaneously say in chat rooms or post to bulletin boards. In any event, I need not address this issue, in the light of our disposition today.
(4)"Dial-a-porn" is a shorthand description of "sexually oriented prerecorded telephone messages". Sable, 492 U.S. at 117-18.
(5)In turn, Pacifica's definition of indecency has its roots in the Supreme Court's obscenity jurisprudence. Indecency includes some but not all of the elements of obscenity. See, e.g., Alliance for Community Media, 56 F.3d at 113-14 n.4.
(6)The reach of the two provisions is not coterminous, however. As we explain in the introduction to this Adjudication, Section 223(a) reaches the making, creation, transmission, and initiation of indecent speech. Section 223(d) arguably reaches more broadly to the "display" of indecent speech. I conclude here only that both sections refer to the identical type of proscribed speech.
(7)At oral argument, counsel for the Government candidly recognized that "there's nothing quite like this statute before", and that the CDA's novelty raised some "legislative craftsmanship problem[s]". Transcript of May 10, 1996, at 81-82. I believe that my analysis here makes sense in the light of the legislative history and the jurisprudence on which Congress relied in enacting the CDA. See Senate Report at 188, reprinted in 1996 U.S.C.C.A.N. at 201-02.
(8)The counterargument is that Section 223(e)(5)(A), when read together with Section 223(e)(6), merely confers jurisdiction on the FCC to prescribe the "reasonable, effective, and appropriate actions" that count as defenses. Congress employed a similar scheme for dial-a-porn. See Dial Information Servs., 938 F.2d at 1539 (citing 47 U.S.C. Section 223(b)(3)); Information Providers' Coalition, 928 F.2d at 871.
(9)The play was "critically acclaimed and long-running in Los Angeles area theaters". Infinity Broadcasting, 3 FCC R. at 932.
(10)Analytically, it makes sense that indecent speech has public value. After all, indecent speech is nevertheless protected speech, see, e.g., Sable, 492 U.S. at 126, and it must therefore have some public value that underlies the need for protection. Obscenity, by contrast, has no public value, id. at 124, and thus has no protection from proscription.
(11)Internet technology undercuts the Government's argument that the "in context" element of Sections 223(a) and 223(d) would insulate plaintiffs such as Critical Path from liability. See, e.g., Transcript of May 10, 1996, at 89-91. A user who clicks on a link in the Critical Path database (see Findings 33, 77-78) might travel to a highly graphic page in a larger HTML document. The social value of that page, in context, might be debatable, but the use of links effectively excerpts that document by eliminating content unrelated to the link.
(12)Moreover, because of the technology of Internet relay chat, it would need to make this determination before it organized the chat room, since it could not pre-screen the discussion among the participants. Thus, it would need to predict, in advance, what the participants were likely to say. The participants would need to make a similar determination, unaided (I expect) by First Amendment lawyers.
(13)Testimony of April 12, 1996, at 235-36.
(14)In this section I do not imply that the FCC has jurisdiction to process Internet complaints in the same manner as it does for broadcast. The extent of the FCC's jurisdiction under the CDA is a sticky question not relevant here. See Senate Report at 190-91, reprinted in 1996 U.S.C.C.A.N. at 204. Because the administrative decisions cited above arose out of citizens' complaints to the FCC, however, they provide a kind of surrogate insight into the kinds of speech that citizens have charged as indecent in the past.
(15)See Finding of fact 81. See also Symposium, Emerging Media: Technology and the First Amendment, 104 Yale L.J. 1613 (1995).
(16)A narrow holding for this new medium also will not eliminate the chill to plaintiffs, who could well stifle the extent of their participation in this new medium while awaiting a future iteration of the CDA. Such a holding would also lead Congress to believe that a rewritten CDA (using, for example, a "harmful to minors" standard, see Senate Report at 189, reprinted in 1996 U.S.C.C.A.N. at 202) would pass constitutional muster. In my view, a holding consistent with the novel qualities of this medium provides Congress with prompt and clear answers to the questions that the CDA asks.
(17)The history of dial-a-porn regulation both before and after Sable is tortuous, and involves the intervention of all three branches of government. I will not rehearse that history here, deferring instead to the other courts that have recounted it. See, e.g., Sable, 492 U.S. at 118-23; Dial Information Serv., 938 F.2d at 1537-40; Information Providers Coalition, 928 F.2d at 870-73.
(18)Sable is arguably not a decision about mass communication. Unlike Red Lion, Tornillo, or Turner, the Court in Sable reached no conclusions about the proper fit between the First Amendment and governmental regulation of the telephone. The case also includes no discussion of the technology of the telephone generally. The plaintiff in that case, a purveyor of dial-a-porn, challenged the statute only with respect to that type of content. Sable, 492 U.S. at 117-18. Thus, the Court's opinion discussed only the "dial-in services". Id. at 128. Since every telephone call at issue was, by definition, dial-a-porn, every telephone call was, by definition, either obscene or indecent. Id. at 132 (Scalia, J., concurring). Here, however, plaintiffs represent forty-seven different speakers (including educational associations and consortia) who provide content to the Internet on a broad range of topics. The limited reach of the Sable holding renders it inapt to the Internet communications of the plaintiffs in these actions.
(19)I note here, too, that we have found as a fact that operation of a computer is not as simple as turning on a television, and that the assaultive nature of television, see Pacifica, 438 U.S. at 748-49, is quite absent in Internet use. See Findings 87-89. The use of warnings and headings, for example, will normally shield users from immediate entry into a sexually explicit Web site or newsgroup message. See Finding 88. The Government may well be right that sexually explicit content is just a few clicks of a mouse away from the user, but there is an immense legal significance to those few clicks.
(20)In a May 3, 1996 letter to a three-judge court in the Southern District of New York, John C. Keeney, Acting Assistant Attorney General in the Criminal Division of the Department of Justice, has advised that tagging would be "substantial evidence" in support of a Section 223(e)(5)(A) defense:
Under present technology, non-commercial content providers can take steps to list their site[s] in URL registries of covered sites, register their site[s] with the marketplace of browsers and blocking software (including listing an IP address), place their material in a directory blocked by screening software, or take other similarly effective affirmative steps to make their site[s] known to the world to allow the site[s] to be blocked. Under present technology, it is the position of the Department of Justice that, absent extraordinary circumstances, such efforts would constitute substantial evidence that a content provider had taken good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to the covered material. The same would be true for tagging by content providers coupled with evidence that the tag would be screened by the marketplace of browsers and blocking software.
Letter of May 3, 1996 from Acting Assistant Attorney General John C. Keeney to Hons. Denise L. Cote, Leonard B. Sand, and Jose A. Cabranes, attached to Defendants' Motion for Leave to File Supplemental Statement. On May 8, 1996, the Government moved to file the Kenney letter in this action, and we granted the motion as unopposed the next day.
The letter certainly raises more questions than it answers. I wonder, for example, whether it is consistent with the plain language of the Act simply for content providers to "make their site[s] known to the world" and thereby "to allow [them] to be blocked", even though this form of notice alone would not reduce the availability of indecent content. Cf. Senate Report at 178, 1996 U.S.C.C.A.N. at 201 (noting that Section 223(d) "applies to content providers who post indecent material for online display without taking precautions that shield that material from minors"). It is also an unanswered question whether the Keeney letter would eliminate any of the CDA's chill, since the Government acknowledged that the letter would not prohibit a United States Attorney from taking a contrary position in a particular prosecution. See Defendants' May 9, 1996 Response to the May 8, 1996 Order of Court. The letter also fails to mention how users who participate in chat rooms, newsgroups, listservs, and e-mail might take advantage of Section 223(e)(5)(A). Finally, it is undisputed that neither PICS nor the hypothetical "-L18" tag are available to speakers using the World Wide Web today, whom the Government has explicitly reserved its right to prosecute should the CDA ultimately be found constitutional. See Stipulation and Order of February 26, 1996, quoted supra.
(21)Turner examined certain "must-carry" provisions under an intermediate scrutiny, since those laws imposed incidental burdens on speech but did not directly regulate content. Turner, 114 S. Ct. at 2469. The Court remanded the case to the district court without passing on the constitutionality of the must-carry provisions. Id. at 2472.
(22)Arguably, a valid CDA would create an incentive for overseas pornographers not to label their speech. If we upheld the CDA, foreign pornographers could reap the benefit of unfettered access to American audiences. A valid CDA might also encourage American pornographers to relocate in foreign countries or at least use anonymous remailers from foreign servers.
